Duties of Trustee and Paying Agent. (a) If an Event of Default has occurred and is continuing and a Responsible Officer has actual knowledge thereof, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs. (b) Except during the continuance of an Event of Default, (i) the Trustee and Paying Agent undertake to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee or the Paying Agent; and (ii) in the absence of bad faith on the part of the Trustee or the Paying Agent, the Trustee or the Paying Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee or the Paying Agent and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee or the Paying Agent, the Trustee and the Paying Agent shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of the mathematical calculations or other facts stated therein). (c) The Trustee may not be relieved from liability for its own gross negligence, bad faith or willful misconduct, except that: (i) this Section 7.01(c) does not limit the effect of Section 7.01(b); (ii) the Trustee and the Paying Agent shall not be liable for any error of judgment made in good faith by a Responsible Officer unless it is proved that the Trustee or the Paying Agent was grossly negligent in ascertaining the pertinent facts; and (iii) the Trustee and the Paying Agent shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 4.19 or exercising any trust or power conferred upon the Trustee or the Paying Agent under this Indenture. (d) The Trustee and the Paying Agent shall not be liable for interest on any money received by it except as the Trustee and the Paying Agent may agree in writing with the Issuer. (e) Money held in trust by the Trustee or any Paying Agent need not be segregated from other funds except to the extent required by law. (f) No provision of this Indenture shall require the Trustee or the Paying Agent to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds and/or adequate indemnity against such risk or liability is not satisfactorily assured to it. (g) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee and the Paying Agent shall be subject to the provisions of this Section 7.01.
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Duties of Trustee and Paying Agent. (a) If an Event of Default has occurred and is continuing and a Responsible Officer has actual knowledge thereof, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(b) Except during the continuance of an Event of Default, (i) the Trustee and Paying Agent undertake to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee or the Paying Agent; and (ii) in the absence of bad faith on the part of the Trustee or the Paying Agent, the Trustee or the Paying Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee or the Paying Agent and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee or the Paying Agent, the Trustee and the Paying Agent shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of the mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own gross negligence, bad faith or willful misconduct, except that:
(i) this Section 7.01(c6.01(c) does not limit the effect of Section 7.01(b6.01(b);; and
(ii) the Trustee and the Paying Agent shall not be liable for any error of judgment made in good faith by a Responsible Officer unless it is proved that the Trustee or the Paying Agent was grossly negligent in ascertaining the pertinent facts; and
(iii) the Trustee and the Paying Agent shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 4.19 or exercising any trust or power conferred upon the Trustee or the Paying Agent under this Indenture.
(d) The Trustee and the Paying Agent shall not be liable for interest on any money received by it except as the Trustee and the Paying Agent may agree in writing with the Issuer.
(e) Money held in trust by the Trustee or any Paying Agent need not be segregated from other funds except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee or the Paying Agent to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds and/or adequate indemnity against such risk or liability is not satisfactorily assured to it.
(g) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee and the Paying Agent shall be subject to the provisions of this Section 7.016.01.
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Duties of Trustee and Paying Agent. (a) If The Trustee, prior to the occurrence of an Event of Default has occurred and is continuing and a Responsible Officer has actual knowledge thereofafter the curing or waiving of all Events of Default which may have occurred, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(b) Except during the continuance of an Event of Default, (i) the Trustee and Paying Agent undertake undertakes to perform such duties and only such duties as are specifically set forth in this Indenture Agreement. If an Event of Default occurs and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Agreement, and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. Any permissive right of the Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee or the Paying Agent, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee or the Paying Agent which are specifically required to be furnished pursuant to any provision of this Agreement (other than the Mortgage Files, the review of which is specifically governed by the terms of Article II), shall examine them to determine whether they conform to the requirements of this Agreement. If any such instrument is found not to conform to the requirements of this Agreement in a material manner, the Trustee or the Paying Agent shall notify the party providing such instrument and requesting the correction thereof. The Trustee or the Paying Agent shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Depositor, the Servicer or the Special Servicer or another Person, and accepted by the Trustee or the Paying Agent in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the Trustee or the Paying Agent from liability for its own negligent action, its own negligent failure to act or its own willful misconduct or bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the curing of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee or the Paying Agent; and (ii) and, in the absence of bad faith on the part of the Trustee or the Paying AgentTrustee, the Trustee or the Paying Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee or the Paying Agent and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee or the Paying Agent, the Trustee and the Paying Agent shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of the mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own gross negligence, bad faith or willful misconduct, except that:
(i) this Section 7.01(c) does not limit the effect of Section 7.01(b)Agreement;
(ii) Neither the Trustee and nor the Paying Agent shall not be liable for any an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee or the Paying Agent, respectively, unless it is shall be proved that the Trustee or the Paying Agent Agent, respectively, was grossly negligent in ascertaining the pertinent facts; and
(iii) the The Trustee and the Paying Agent shall not be liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the direction received by it pursuant of Holders of Certificates entitled to Section 4.19 at least 25% of the Voting Rights relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee or the Paying Agent Trustee, under this IndentureAgreement (unless a higher percentage of Voting Rights is required for such action).
(d) The Trustee and Paying Agent shall promptly make available to the Companion Holder all reports via its Internet Website that the Paying Agent shall not be liable for interest on any money received by it except as the Trustee and the Paying Agent may agree in writing with the Issuer.
(e) Money held in trust by the Trustee or any Paying Agent need not be segregated from other funds except has made available to Certificateholders under this Agreement to the extent required by law.
(f) No provision of this Indenture shall require the Trustee such reports relate to AB Mortgage Loans or the Paying Agent to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powersOne Post Office Square Whole Loan, if it shall have reasonable grounds to believe that repayment of such funds and/or adequate indemnity against such risk or liability is not satisfactorily assured to itas applicable.
(g) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee and the Paying Agent shall be subject to the provisions of this Section 7.01.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Jp Morgan Chase Com Mort Sec Corp Ps THR Certs Ser 2003-Ln1), Pooling and Servicing Agreement (Jp Morgan Chase Com Mort Sec Corp Ps THR Certs Ser 2003-Ln1)
Duties of Trustee and Paying Agent. (a) The Trustee, except during the continuance of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. Any permissive right of the Trustee provided for in this Agreement shall not be construed as a duty of the Trustee. If an Event of Default (of which a Responsible Officer of the Trustee shall have actual knowledge) has occurred and is continuing and a Responsible Officer has actual knowledge thereofnot otherwise been cured or waived, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement and use the same degree of care and skill in its their exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsaffairs unless the Trustee is acting as Master Servicer, in which case it shall use the same degree of care and skill as the Master Servicer hereunder.
(b) Except during the continuance of an Event of Default, (i) the Trustee and Paying Agent undertake to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee or the Paying Agent; and (ii) in the absence of bad faith on the part of the Trustee or the Paying Agent, the Trustee or the Paying Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed thereinThe Trustee, upon certificates receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or opinions other instruments furnished to the Trustee or the Paying Agent and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they are in the form required by this Agreement; provided, however, that the Trustee shall not be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Master Servicer, any Servicer, the Swap Counterparty or the Cap Counterparty to the Trustee pursuant to this Agreement, and shall not be required to recalculate or verify any numerical information furnished to the Paying AgentTrustee pursuant to this Agreement. Subject to the immediately preceding sentence, if any such resolution, certificate, statement, opinion, report, document, order or other instrument is found not to conform on its face to the form required by this Agreement the Trustee shall notify the Person providing such resolutions, certificates, statements, opinions, reports, documents, order or other instrument of the non-conformity, and if the failure to provide such resolution, certificate, statement, opinion, report, document, order or other instrument would constitute an Event of Default under this Agreement, the Trustee and the Paying Agent shall examine the certificates and opinions to determine whether or not they conform will provide notice thereof to the requirements of this Indenture (but need not confirm or investigate Certificateholders, the accuracy Certificate Insurer and any NIMS Insurer and will, at the expense of the mathematical calculations or other facts stated therein)Trust Fund, which expense shall be reasonable given the scope and nature of the required action, take such further action as directed by the Certificateholders, the Certificate Insurer and any NIMS Insurer.
(c) The Trustee may shall not have any liability arising out of or in connection with this Agreement, except for its negligence or willful misconduct. Notwithstanding anything in this Agreement to the contrary, the Trustee shall not be relieved liable for special, indirect or consequential losses or damages of any kind whatsoever (including, but not limited to, lost profits). No provision of this Agreement shall be construed to relieve the Trustee from liability for its own gross negligencenegligent action, bad faith its own negligent failure to act or its own willful misconduct; provided, except however, that:
(i) this Section 7.01(c) does not limit the effect of Section 7.01(b);
(ii) the The Trustee and the Paying Agent shall not be liable for any error of judgment made in good faith by a Responsible Officer unless it is proved that the Trustee or the Paying Agent was grossly negligent in ascertaining the pertinent facts; and
(iii) the Trustee and the Paying Agent shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the direction received by it pursuant to or with the consent of Holders of Certificates as provided in Section 4.19 or exercising any trust or power conferred upon 6.18 hereof;
(ii) For all purposes under this Agreement, the Trustee or the Paying Agent under this Indenture.
(d) The Trustee and the Paying Agent shall not be liable for interest on deemed to have notice of any money received Event of Default (other than resulting from a failure by it except as the Master Servicer (i) to remit funds (or to make Advances) or (ii) to furnish information to the Trustee and when required to do so) unless a Responsible Officer of the Paying Agent may agree Trustee has actual knowledge thereof or unless written notice of any event which is in writing with the Issuer.
(e) Money held in trust fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Holders and this Agreement or any Paying Agent need not be segregated from other funds except to the extent required by law.Certificate Insurer under the Certificate Insurance Policy;
(fiii) No provision of this Indenture Agreement shall require the Trustee or the Paying Agent to expend or risk its own funds or otherwise incur personal any financial liability in the performance of any of its duties hereunder hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe for believing that repayment of such funds and/or or adequate indemnity against such risk or liability is not satisfactorily reasonably assured to it; and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Depositor or the Master Servicer under this Agreement; and
(iv) The Trustee shall not be responsible for any act or omission of the Master Servicer, any Servicer, the Depositor, the Certificate Insurer, the Swap Counterparty, the Cap Counterparty, the Seller or any Custodian.
(d) The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice or other document it may receive or which may be alleged to have been delivered to or served upon it by the parties as a consequence of the assignment of any Mortgage Loan hereunder; provided, however, that the Trustee shall promptly remit to the Master Servicer upon receipt any such complaint, claim, demand, notice or other document (i) which is delivered to the Corporate Trust Office of the Trustee, (ii) of which a Responsible Officer has actual knowledge, and (iii) which contains information sufficient to permit the Trustee to make a determination that the real property to which such document relates is a Mortgaged Property.
(e) The Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of any NIMS Insurer, the Certificate Insurer or the Certificateholders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as to the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred upon the Trustee under this Agreement.
(f) The Trustee shall not be required to perform services under this Agreement, or to expend or risk its own funds or otherwise incur financial liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers if there is reasonable ground for believing that the timely payment of its fees and expenses or the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Master Servicer or any Servicer under this Agreement or any Servicing Agreement except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Master Servicer in accordance with the terms of this Agreement.
(g) Every provision The Trustee shall not be held liable by reason of this Indenture relating any insufficiency in the Collection Account, the Basis Risk Reserve Fund, the Cap Account, the Swap Account or the Collateral Account resulting from any investment loss on any Eligible Investment included therein (except to the conduct or affecting the liability of or affording protection to extent that the Trustee is the obligor and the Paying Agent shall be subject to the provisions of this Section 7.01has defaulted thereon).
Appears in 1 contract
Duties of Trustee and Paying Agent. (a) If The Trustee, prior to the occurrence of an Event of Default has occurred and is continuing and a Responsible Officer has actual knowledge thereofafter the curing or waiving of all Events of Default which may have occurred, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(b) Except during the continuance of an Event of Default, (i) the Trustee and Paying Agent undertake undertakes to perform such duties and only such duties as are specifically set forth in this Indenture Agreement. If an Event of Default occurs and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Agreement, and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. Any permissive right of the Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee or the Paying Agent, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee or the Paying Agent which are specifically required to be furnished pursuant to any provision of this Agreement (other than the Mortgage Files, the review of which is specifically governed by the terms of Article II), shall examine them to determine whether they conform to the requirements of this Agreement. If any such instrument is found not to conform to the requirements of this Agreement in a material manner, the Trustee or the Paying Agent shall notify the party providing such instrument and requesting the correction thereof. The Trustee or the Paying Agent shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Depositor, the Master Servicer or the Special Servicer or another Person, and accepted by the Trustee or the Paying Agent in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the Trustee or the Paying Agent from liability for its own negligent action, its own negligent failure to act or its own willful misconduct or bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the curing of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee or the Paying Agent; and (ii) and, in the absence of bad faith on the part of the Trustee or the Paying AgentTrustee, the Trustee or the Paying Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee or the Paying Agent and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee or the Paying Agent, the Trustee and the Paying Agent shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of the mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own gross negligence, bad faith or willful misconduct, except that:
(i) this Section 7.01(c) does not limit the effect of Section 7.01(b)Agreement;
(ii) Neither the Trustee and nor the Paying Agent shall not be liable for any an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee or the Paying Agent, respectively, unless it is shall be proved that the Trustee or the Paying Agent Agent, respectively, was grossly negligent in ascertaining the pertinent facts; and
(iii) the The Trustee and the Paying Agent shall not be liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the direction received by it pursuant of Holders of Certificates entitled to Section 4.19 at least 25% of the Voting Rights relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee or the Paying Agent Trustee, under this IndentureAgreement (unless a higher percentage of Voting Rights is required for such action).
(d) The Trustee and Paying Agent shall promptly make available to the Companion Holder all reports via its Internet Website that the Paying Agent shall not be liable for interest on any money received by it except as the Trustee and the Paying Agent may agree in writing with the Issuer.
(e) Money held in trust by the Trustee or any Paying Agent need not be segregated from other funds except has made available to Certificateholders under this Agreement to the extent required by lawsuch reports relate to AB Mortgage Loans.
(f) No provision of this Indenture shall require the Trustee or the Paying Agent to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds and/or adequate indemnity against such risk or liability is not satisfactorily assured to it.
(g) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee and the Paying Agent shall be subject to the provisions of this Section 7.01.
Appears in 1 contract
Duties of Trustee and Paying Agent. (a) If The Trustee, prior to the occurrence of an Event of Default has occurred and is continuing and a Responsible Officer has actual knowledge thereofafter the curing or waiving of all Events of Default which may have occurred, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(b) Except during the continuance of an Event of Default, (i) the Trustee and Paying Agent undertake undertakes to perform such duties and only such duties as are specifically set forth in this Indenture Agreement. If an Event of Default occurs and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Agreement, and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. Any permissive right of the Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee or the Paying Agent, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee or the Paying Agent which are specifically required to be furnished pursuant to any provision of this Agreement (other than the Mortgage Files, the review of which is specifically governed by the terms of Article II), shall examine them to determine whether they conform to the requirements of this Agreement. If any such instrument is found not to conform to the requirements of this Agreement in a material manner, the Trustee or the Paying Agent shall notify the party providing such instrument and requesting the correction thereof. The Trustee or the Paying Agent shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Depositor, the Servicer or the Special Servicer or another Person, and accepted by the Trustee or the Paying Agent in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the Trustee or the Paying Agent from liability for its own negligent action, its own negligent failure to act or its own willful misconduct or bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the curing of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Indenture Agreement against the Trustee or the Paying Agent; and (ii) and, in the absence of bad faith on the part of the Trustee or the Paying AgentTrustee, the Trustee or the Paying Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee or the Paying Agent and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee or the Paying Agent, the Trustee and the Paying Agent shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of the mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own gross negligence, bad faith or willful misconduct, except that:
(i) this Section 7.01(c) does not limit the effect of Section 7.01(b)Agreement;
(ii) Neither the Trustee and nor the Paying Agent shall not be liable for any an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee or the Paying Agent, respectively, unless it is shall be proved that the Trustee or the Paying Agent Agent, respectively, was grossly negligent in ascertaining the pertinent facts; and
(iii) the The Trustee and the Paying Agent shall not be liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the direction received by it pursuant of Holders of Certificates entitled to Section 4.19 at least 25% of the Voting Rights relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee or the Paying Agent Trustee, under this IndentureAgreement (unless a higher percentage of Voting Rights is required for such action).
(d) The Trustee and Paying Agent shall promptly make available to the Companion Holder all reports via its Internet Website that the Paying Agent shall not be liable for interest on any money received by it except as the Trustee and the Paying Agent may agree in writing with the Issuer.
(e) Money held in trust by the Trustee or any Paying Agent need not be segregated from other funds except has made available to Certificateholders under this Agreement to the extent required by lawsuch reports relate to AB Mortgage Loans.
(f) No provision of this Indenture shall require the Trustee or the Paying Agent to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds and/or adequate indemnity against such risk or liability is not satisfactorily assured to it.
(g) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee and the Paying Agent shall be subject to the provisions of this Section 7.01.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Jp Morgan Chase Com Sec Corp Pass Thru Cert Ser 2003-Cibc6)
Duties of Trustee and Paying Agent. (a) The Trustee, except during the continuance of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. Any permissive right of the Trustee provided for in this Agreement shall not be construed as a duty of the Trustee. If an Event of Default (of which a Responsible Officer of the Trustee shall have actual knowledge) has occurred and is continuing and a Responsible Officer has actual knowledge thereofnot otherwise been cured or waived, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement and use the same degree of care and skill in its their exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairsaffairs unless the Trustee is acting as Master Servicer, in which case it shall use the same degree of care and skill as the Master Servicer hereunder.
(b) Except during the continuance of an Event of Default, (i) the Trustee and Paying Agent undertake to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee or the Paying Agent; and (ii) in the absence of bad faith on the part of the Trustee or the Paying Agent, the Trustee or the Paying Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed thereinThe Trustee, upon certificates receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or opinions other instruments furnished to the Trustee or the Paying Agent and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they are in the form required by this Agreement; provided, however, that the Trustee shall not be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Master Servicer, any Servicer, the Swap Counterparty or the Cap Counterparty to the Trustee pursuant to this Agreement, and shall not be required to recalculate or verify any numerical information furnished to the Paying AgentTrustee pursuant to this Agreement. Subject to the immediately preceding sentence, if any such resolution, certificate, statement, opinion, report, document, order or other instrument is found not to conform on its face to the form required by this Agreement the Trustee shall notify the Person providing such resolutions, certificates, statements, opinions, reports, documents, order or other instrument of the non-conformity, and if the failure to provide such resolution, certificate, statement, opinion, report, document, order or other instrument would constitute an Event of Default under this Agreement, the Trustee and the Paying Agent shall examine the certificates and opinions to determine whether or not they conform will provide notice thereof to the requirements of this Indenture (but need not confirm or investigate Certificateholders and any NIMS Insurer and will, at the accuracy expense of the mathematical calculations or other facts stated therein)Trust Fund, which expense shall be reasonable given the scope and nature of the required action, take such further action as directed by the Certificateholders and any NIMS Insurer.
(c) The Trustee may shall not have any liability arising out of or in connection with this Agreement, except for its negligence or willful misconduct. Notwithstanding anything in this Agreement to the contrary, the Trustee shall not be relieved liable for special, indirect or consequential losses or damages of any kind whatsoever (including, but not limited to, lost profits). No provision of this Agreement shall be construed to relieve the Trustee from liability for its own gross negligencenegligent action, bad faith its own negligent failure to act or its own willful misconduct; provided, except however, that:
(i) this Section 7.01(c) does not limit the effect of Section 7.01(b);
(ii) the The Trustee and the Paying Agent shall not be liable for any error of judgment made in good faith by a Responsible Officer unless it is proved that the Trustee or the Paying Agent was grossly negligent in ascertaining the pertinent facts; and
(iii) the Trustee and the Paying Agent shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it takes or omits to take in good faith in accordance with a the direction received by it pursuant to or with the consent of Holders of Certificates as provided in Section 4.19 or exercising any trust or power conferred upon 6.18 hereof;
(ii) For all purposes under this Agreement, the Trustee or the Paying Agent under this Indenture.
(d) The Trustee and the Paying Agent shall not be liable for interest on deemed to have notice of any money received Event of Default (other than resulting from a failure by it except as the Master Servicer (i) to remit funds (or to make Advances) or (ii) to furnish information to the Trustee and when required to do so) unless a Responsible Officer of the Paying Agent may agree Trustee has actual knowledge thereof or unless written notice of any event which is in writing with the Issuer.
(e) Money held in trust fact such a default is received by the Trustee or any Paying Agent need not be segregated from other funds except to at the extent required by law.Corporate Trust Office, and such notice references the Holders and this Agreement;
(fiii) No provision of this Indenture Agreement shall require the Trustee or the Paying Agent to expend or risk its own funds or otherwise incur personal any financial liability in the performance of any of its duties hereunder hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe for believing that repayment of such funds and/or or adequate indemnity against such risk or liability is not satisfactorily reasonably assured to it; and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Depositor or the Master Servicer under this Agreement; and
(iv) The Trustee shall not be responsible for any act or omission of the Master Servicer, any Servicer, the Depositor, the Swap Counterparty, the Cap Counterparty, the Seller or any Custodian.
(d) The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice or other document it may receive or which may be alleged to have been delivered to or served upon it by the parties as a consequence of the assignment of any Mortgage Loan hereunder; provided, however, that the Trustee shall promptly remit to the Master Servicer upon receipt any such complaint, claim, demand, notice or other document (i) which is delivered to the Corporate Trust Office of the Trustee, (ii) of which a Responsible Officer has actual knowledge, and (iii) which contains information sufficient to permit the Trustee to make a determination that the real property to which such document relates is a Mortgaged Property.
(e) The Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of any NIMS Insurer or the Certificateholders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as to the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred upon the Trustee under this Agreement.
(f) The Trustee shall not be required to perform services under this Agreement, or to expend or risk its own funds or otherwise incur financial liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers if there is reasonable ground for believing that the timely payment of its fees and expenses or the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Master Servicer or any Servicer under this Agreement or any Servicing Agreement except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Master Servicer in accordance with the terms of this Agreement.
(g) Every provision The Trustee shall not be held liable by reason of this Indenture relating any insufficiency in the Collection Account, the Basis Risk Reserve Fund, the Cap Account, the Swap Account or the Collateral Account resulting from any investment loss on any Eligible Investment included therein (except to the conduct extent that the Trustee is the obligor and has defaulted thereon).
(h) Except as otherwise provided herein, the Trustee shall not have any duty (A) to record, file or affecting deposit this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to maintain any such recording or filing or depositing or any rerecording, refiling or redepositing of any such statement or agreement, (B) to procure or maintain any insurance, (C) to pay or discharge any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the liability Trust Fund other than from funds available in the Collection Account or the Certificate Account, or (D) to confirm or verify the contents of any reports or affording protection certificates of the Master Servicer, any Servicer, the Cap Counterparty, the Swap Counterparty or the Depositor delivered to the Trustee pursuant to this Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(i) The Trustee shall not be liable in its individual capacity for an error of judgment made in good faith by a Responsible Officer or any other officer of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts.
(j) Notwithstanding anything in this Agreement to the contrary, neither the Trustee nor the Paying Agent shall not be liable for special, indirect or consequential losses or damages of any kind whatsoever (including, but not limited to, lost profits), even if the Trustee or the Paying Agent, as applicable, has been advised of the likelihood of such loss or damage and regardless of the form of action.
(k) On or before March 15 of each calendar year for so long as the Depositor is subject to Exchange Act reporting requirements for the Xxxxxx XS Trust 2007-8H, beginning in March 2008, the Trustee and Paying Agent (if other than the Trustee) shall deliver to the Sponsor, the Master Servicer and the Depositor a report regarding its assessment of compliance with the Servicing Criteria applicable to such party, as identified on Exhibit O hereto, as of and for the period ending the end of the fiscal year ending no later than December 31 of the year prior to the year of delivery of the report. Each such report shall include (a) a statement of the party’s responsibility for assessing compliance with the Servicing Criteria applicable to such party, (b) a statement that such party used the criteria identified in Item 1122(d) of Regulation AB (§ 229.1122(d)) to assess compliance with the applicable Servicing Criteria, (c) disclosure of any material instance of noncompliance identified by such party and (d) a statement that a registered public accounting firm has issued an attestation report on such party’s assessment of compliance with the applicable Servicing Criteria, which report shall be delivered by the Trustee as provided in Section 6.01(l). In the event that the Trustee and the Paying Agent are the same party, the Relevant Servicing Criteria of the Paying Agent shall be included in the Trustee’s report.. In addition, on or before March 15th of each calendar year for so long as the Depositor is subject to Exchange Act reporting requirements for the Xxxxxx XS Trust 2007-8H, beginning in March 2008, the Trustee and Paying Agent (if other than the Trustee) shall, at their own expense, furnish or cause to be furnished to the Sponsor and the Depositor an assessment of compliance and accountant’s attestation of any Subservicer or Subcontractor with respect to the Trustee or Paying Agent, as applicable.
(l) On or before March 15th of each calendar year for so long as the Depositor is subject to Exchange Act reporting requirements for the Xxxxxx XS Trust 2007-8H, beginning in March 2008, the Trustee and Paying Agent (if other than the Trustee) shall, at their own expense, cause a registered public accounting firm (who may also render other services to Trustee or Paying Agent), which is a member of the American Institute of Certified Public Accountants, to furnish to the Sponsor, the Master Servicer and the Depositor a report to the effect that (A) it has obtained a representation regarding certain matters from the management of such party, which includes an assertion that such party has complied with the Relevant Servicing Criteria, and (B) on the basis of an examination conducted by such firm in accordance with standards for attestation engagements issued or adopted by the PCAOB, it is expressing an opinion as to whether such party’s compliance with the Relevant Servicing Criteria was fairly stated in all material respects, or it cannot express an overall opinion regarding such party’s assessment of compliance with the Relevant Servicing Criteria made by the Trustee or Paying Agent pursuant to Section 6.01(k) above. In the event that the Trustee and the Paying Agent are the same party, the attestation report caused to be furnished by the Trustee shall also address the Relevant Servicing Criteria for the Paying Agent.
(m) The Trustee shall give prompt written notice to the Sponsor, the Master Servicer and the Depositor of the appointment of any Subcontractor by it and a written description (in form and substance satisfactory to the Sponsor and the Depositor) of the role and function of each Subcontractor utilized by the Trustee, specifying (A) the identity of each such Subcontractor and (B) which elements of the servicing criteria set forth under Item 1122(d) of Regulation AB will be addressed in assessments of compliance and accountant’s attestations provided by each such Subcontractor.
(n) For as long as the Depositor is subject to Exchange Act reporting with respect to the Trust Fund, the Trustee and the Paying Agent (if other than the Trustee) shall notify the Depositor, the Master Servicer and the Sponsor within five (5) days of knowledge thereof (i) of any legal proceedings pending against the Trustee of the type described in Item 1117 (§ 229.1117) of Regulation AB and (ii) if the Trustee shall become (but only to the extent not previously disclosed) at any time an affiliate of any of the parties listed on Exhibit P hereto, together with a description thereof. On or before March 1st of each year, the Depositor shall distribute the information in Exhibit P to the Trustee.
(o) The Trustee agrees to indemnify the Depositor and the Master Servicer, and their respective directors, officers, employees and agents and the Trust Fund and hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that any of them may sustain arising out of or based upon any failure by the Trustee to comply with the provisions of Subsections 6.01(k) through (n) above or any failure by the Trustee to deliver any information, report, certification, accountants’ letter, or other material when and as required under this Agreement, including any report under Section 6.20; provided, however, that in no event shall the Trustee be liable for any special, consequential, indirect or punitive damages pursuant to this Section 7.016.01(o), even if advised of the possibility of such damages.
(p) The Paying Agent and Certificate Registrar shall have the same rights, protections, immunities and indemnities as are afforded to the Trustee pursuant to this Article VI.
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Samples: Trust Agreement (LXS 2007-8h)
Duties of Trustee and Paying Agent. (a) The Trustee, except during the continuance of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. Any permissive right of the Trustee provided for in this Agreement shall not be construed as a duty of the Trustee. If an Event of Default (of which a Responsible Officer of the Trustee shall have actual knowledge) has occurred and is continuing and a Responsible Officer has actual knowledge thereofnot otherwise been cured or waived, the Trustee shall exercise such of the rights and powers vested in it by this Indenture Agreement and use the same degree of care and skill in its their exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(b) Except during the continuance of an Event of Default, (i) the Trustee and Paying Agent undertake to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee or the Paying Agent; and (ii) in the absence of bad faith on the part of the Trustee or the Paying Agent, the Trustee or the Paying Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed thereinThe Trustee, upon certificates receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or opinions other instruments furnished to the Trustee or the Paying Agent and conforming to the requirements of this Indenture. However, in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they are in the form required by this Agreement; provided, however, that the Trustee shall not be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Master Servicer, any Servicer, the Swap Counterparty or the Cap Counterparty to the Trustee pursuant to this Agreement, and shall not be required to recalculate or verify any numerical information furnished to the Paying AgentTrustee pursuant to this Agreement. Subject to the immediately preceding sentence, if any such resolution, certificate, statement, opinion, report, document, order or other instrument is found not to conform on its face to the form required by this Agreement in any material manner the Trustee shall notify the Person providing such resolutions, certificates, statements, opinions, reports, documents, order or other instrument of the non-conformity, and if the failure to provide such resolution, certificate, statement, opinion, report, document, order or other instrument would constitute an Event of Default under this Agreement, the Trustee and the Paying Agent shall examine the certificates and opinions to determine whether or not they conform will provide notice thereof to the requirements of this Indenture (but need not confirm or investigate Certificateholders and any NIMS Insurer and will, at the accuracy expense of the mathematical calculations or other facts stated therein).
(c) The Trustee may not Trust Fund, which expense shall be relieved from liability for its own gross negligencereasonable given the scope and nature of the required action, bad faith or willful misconduct, except that:
(i) this Section 7.01(c) does not limit the effect of Section 7.01(b);
(ii) the Trustee and the Paying Agent shall not be liable for any error of judgment made in good faith by a Responsible Officer unless it is proved that the Trustee or the Paying Agent was grossly negligent in ascertaining the pertinent facts; and
(iii) the Trustee and the Paying Agent shall not be liable with respect to any take such further action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 4.19 or exercising any trust or power conferred upon the Trustee or the Paying Agent under this Indenture.
(d) The Trustee and the Paying Agent shall not be liable for interest on any money received by it except as the Trustee and the Paying Agent may agree in writing with the Issuer.
(e) Money held in trust directed by the Trustee or Certificateholders and any Paying Agent need not be segregated from other funds except to the extent required by lawNIMS Insurer.
(f) No provision of this Indenture shall require the Trustee or the Paying Agent to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds and/or adequate indemnity against such risk or liability is not satisfactorily assured to it.
(g) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee and the Paying Agent shall be subject to the provisions of this Section 7.01.
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